State v. Gordon

• Decision Date: 18 March 2014
• Docket Number: No. 2013AP1878–CR.,2013AP1878–CR.
• Citation: 2014 WI App 44,846 N.W.2d 483,353 Wis.2d 468
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Patrick E. GORDON, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

353 Wis.2d 468

846 N.W.2d 483

2014 WI App 44

STATE of Wisconsin, Plaintiff–Respondent,^†

v.Patrick E. GORDON, Defendant–Appellant.

No. 2013AP1878–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 4, 2014.

Opinion Filed March 18, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Colleen Marion, assistant state public defender, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Jeffrey J. Kassel, assistant attorney general.

Before CURLEY, P.J., FINE and BRENNAN, JJ.

FINE, J.

¶ 1 Patrick E. Gordon appeals the judgment entered on his guilty plea convicting him of unlawfully (1) possessing “[o]ne gram or less” of cocaine with intent to deliver, seeWis. Stat. § 961.41(1m)(cm)1g, and (2) carrying a concealed weapon, seeWis. Stat. § 941.23(2). The only issue on appeal is whether the circuit court properly denied his pre-plea motion to suppress evidence of the gun and cocaine that the police discovered after they stopped Gordon and two friends as they were walking on a Milwaukee street at around 11 p.m. on August 8, 2012.¹ We reverse.

I.

¶ 2 Gordon and two of the three arresting officers, Richard Ticcioni and Mark Dillman, testified at the suppression hearing. Inasmuch as the circuit court found that the officers' testimony was credible, and Gordon does not challenge the circuit court's findings of historical fact, seeWis. Stat. RuleE 805.17(2) (circuit court's findings of fact must be upheld on appeal unless “clearly erroneous”), made applicable to criminal proceedings by Wis. Stat. § 972.11(1), we limit our discussion to the officers' testimony and to the circuit court's findings.

¶ 3 The night the officers stopped Gordon, Ticcioni was in the passenger seat of a marked squad car being driven by police officer Sean Mahnke. Officer Dillman was in the back. They were driving westbound on Keefe Avenue in Milwaukee, slowing for an approaching stoplight when they saw Gordon and his two friends walking in the same direction. Ticcioni said the area was “very well-lit” but was also “one of the more dangerous areas of the district” to which he was assigned, noting that two days earlier someone shot a woman in her car there.

¶ 4 Officer Ticcioni testified that one of his duties was to ferret out “[i]nstances where individuals are carrying guns illegally.” He told the circuit court about the training that helped him determine whether someone was unlawfully carrying a gun: “Individuals that they [ sic ] carry guns on the street—typically illegally—will do movements, things called security adjustments, just characteristics of individuals that can be carrying weapons.” He then explained what he meant by “security adjustments”:

A security adjustment is—is, basically, a conscious or unconscious movement that an individual does when they're confronted by law enforcement when they're typically carrying a weapon. What it is is it's that individual either placing a hand over a pocket or in the waistband, where that gun is, just to make sure that the weapon is still there, that it's secured.

Officer Ticcioni candidly admitted on the State's direct-examination that “[a]nybody can” check for things other than a secreted weapon:

[M]ales that carry wallets in their back pocket, people that carry cell phones in their pocket, many times throughout the day, you're gonna touch your back pocket to make sure your wallet's there, to make sure it's secure, that it hasn't somehow fallen out of your pocket. You—I'm sure a lot of people touch their pants pockets to make sure their phone is in there. It's just kind of an unconscious thing people do to make sure something of value and—that they know they have on them is there.

Ticcioni agreed with the prosecutor that “eye contact between yourself and an individual is relevant” to the hidden unlawful-weapon assessment, and added that if the person was unduly nervous and appeared to be “getting ready—attempting to flee from us on foot,” the person “will hold onto this or grab on to this in their waistband.” The State did not assert, however, and the officers did not testify that either Gordon or his friends were preparing or trying to flee from the officers. Rather, Ticcioni told the circuit court that he saw Gordon “perform what we talked to before, a security check, to his left front pants pocket.” The “check” was the one- or two-second touching of the “outside of his pocket” with the palm of his hand. Gordon only did that once. Ticcioni said on cross-examination that he did not see any bulges in the jeans that Gordon wore.

¶ 5 Officer Ticcioni explained that he decided to stop Gordon because Ticcioni “recognized that—that he [Gordon] had observed our squad car, made the security adjustment, and that kind of alerted me.” Ticcioni also testified that Gordon looked “nervous” and too young to be lawfully carrying a firearm under Wisconsin's then new concealed-carry permit law.² Ticcioni said he told the driver of the squad car to stop, saying “ ‘Mahnke, hold up. We're gonna talk to these guys here.’ ” He conceded on cross-examination, though, that none of the officers had any information that Gordon or his friends had either done anything wrong or were under suspicion for having done anything wrong, and admitted that, as phrased by Gordon's trial lawyer, “the reason why you made that decision is because of this security adjustment.”

¶ 6 According to Officer Ticcioni, the three officers approached Gordon and his friends and said: “ ‘Hey guys. Can we see your hands?’ ” They all put “their hands up.” The officers then frisked the three men and found on Gordon, according to Ticcioni's testimony, “a very small .22 caliber” pistol. As recited by the criminal complaint, the officers also found in Gordon's pants pocket “1.78 grams” of crack cocaine “packaged into twenty-two (22) corner-cut baggies,” as well as “4.18 grams” of marijuana “packaged into five (5) corner-cut baggies.” ³ (Bolding omitted.)

¶ 7 Officer Dillman also testified, and his testimony essentially tracked what Officer Ticcioni told the circuit court, except that he said that he had told the squad car's driver to stop so they could check out Gordon and his friends. He also testified that neither Gordon nor his friends started to walk faster once it appeared that they had seen the squad car or after the officers got out of it.

¶ 8 As noted, the circuit court denied Gordon's suppression motion, and agreed with Gordon's trial lawyer that, as phrased by the lawyer, “the most significant and critical issue was whether or not the security adjustment or check that they saw Mr. Gordon perform gave them the legal authority to stop Mr. Gordon.” We agree that the “stop” was the pivotal point because if the “stop” was unlawful, the rest of what happened is not material to whether the circuit court erred in denying Gordon's suppression motion. See State v. Morgan, 197 Wis.2d 200, 217, 539 N.W.2d 887, 894 (1995) (Geske, J., concurring on behalf of six justices) (“[H]indsight cannot constitutionally be employed to justify a pat-down.”); id., 197 Wis.2d at 223, 539 N.W.2d at 897 (Abrahamson, J., dissenting) (“[H]indsight does not satisfy the federal or state constitution.”).

¶ 9 In its oral decision, the circuit court found, as material:

• The officers stopped Gordon in an “area of high crime.”

• The area was one of “a very high-volume, violent crime area with a lot of gun violence.”

• On the night of the stop, the “officers believed the three individuals [Gordon and his friends] recognized the police presence.”

• After “the police presence was recognized,” the officers “saw the defendant with his left hand reach toward the left front pants pocket.”

• This was the “security adjustment” about which the officers testified, and the circuit court further found:

A security adjustment, I believe the testimony was, is basically a conscious or unconscious movement that an individual does when they're confronted by law enforcement when they're typically carrying, you know, a weapon, and it's done either by the individual placing a hand over the pocket or a waistband where the gun might be, just to make sure that the weapon is still there and that it's secure.

• The officers believed that Gordon looked too young to be lawfully carrying a concealed weapon under Wisconsin's concealed carry law.

Inasmuch as the lawfulness of the officers' stop of Gordon turns on whether they had a reasonable suspicion that Gordon might have been armed, the officers' belief as to how old Gordon appeared to be would only be material if they had an objectively reasonable belief that he was armed. See Florida v. J.L., 529 U.S. 266, 273 n. *, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (Young age of suspect in connection with law making it unlawful for a person of that age to carry a gun was material only if the police “could be confident that he was carrying a gun in the first place.”). As we explain in Part II, the officers here did not have an objectively reasonable belief that he was armed. Nevertheless, we include the circuit court's finding about the officers' belief about Gordon's age in order to fully set out facts the circuit court found in concluding that the officers had a right to stop Gordon that night.

¶ 10 We review de novo the circuit court's legal conclusion that “ the officer[s] had a right to approach Mr. Gordon and the other two individuals on the street.” See State v. Krier, 165 Wis.2d 673, 676, 478 N.W.2d 63, 65 (Ct.App.1991) (We review de novo the lawfulness of an investigatory stop.). Resolution of that issue turns on the Fourth Amendment to the United States Constitution and its application here under the teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny.

II.

¶ 11 The Fourth Amendment to the United States Constitution is the securing anchor of the right of persons to their privacy against government...